Rationality in the appointment of public officials

One has a certain sense of deja vu when considering the ongoing litigation regarding the rationality and lawfulness of the appointment of the Head of the Hawks, Maj-Gen Ntlemeza. Maj-Gen Ntlemeza is the third public official in the last five years whose appointment has been contested in a court of law. In 2012 Menzi Simelane’s appointment as National Director of Public Prosecutions was declared irrational and unlawful by the Constitutional Court, and as recent as May 2016 Hlaudi Motsoeneng’s appointment as the Chief Operating Officer for SABC was declared irrational and unlawful by the Western Cape High Court[1].

Where is rationality based within South African law?

The requirement of rational administrative action is not new to South Africa’s political and legal landscape. In fact it stems from the Constitution and is further realised in our legislation and established judicial precedent. Section 1 of our Constitution ensures that South Africa is founded on the rule of law; while section 33 guarantees that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. By reading these two sections together we see the Constitution protects us from arbitrary governance and ensures a system of transparency and accountability based on rationality and reasonableness.

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) gives effect to the rights outlined in section 33 of our Constitution, and provides us with two key points regarding rational administrative action. Firstly PAJA defines ‘administrative action’ as any decision taken by an organ of state when exercising power in terms of the Constitution or in terms of legislation. Secondly it states that a court has the power to judicially review an administrative action if the action itself is not rationally connected to:

What have the Courts said?

If the necessity of rationality in administrative action wasn’t clearly established by now one only needs to look at the precedent set by the Courts. In Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others[3] the Constitutional Court established that executive decisions, are required by the rule of law, to be rationally related to the purpose for which the power was given.

This was later reaffirmed in Albutt v Centre for the Study of Violence and Reconciliation, and Others[4] when the court based its judgment on whether the means selected were rationally related to the objective sought to be achieved, and if they weren’t then they fell short of the standards demanded by the Constitution.

The most significant judgement and the first regarding the rationality of appointment of public officials is in the Democratic Alliance v President of South Africa and Others[5]. The Constitutional Court found that the absence of a rational relationship between the means and ends regarding Menzi Simelane’s appointment as NDPP was significant. By ignoring prima facie evidence of dishonesty during his appointment the means were inconsistent with the end sought to be achieved i.e. “the appointment of a fit and proper person, with due regard to his or her experience, conscientiousness and integrity”[6]. The very same issue is at the heart of the ongoing case concerning Maj-Gen Ntlemeza’s appointment as the head of the Hawks i.e. the disregard of evidence which is indicative that he does not meet the criteria of “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity”[7].

Why is irrationality still happening?

In spite of the Constitutional and legislative ‘checklists’ that are in place and the clear examples set by the judiciary, how can we explain the continuation of irrational decision-making by members of the executive? It could be argued that the irrational decisions of the executive can be understood as the product of an emerging ‘prerogative state’ in conflict with the ‘normative state’. The normative state is “bound by rules, procedures, laws and conventions, and (consists) of formal institutions”, whereas the prerogative state is “an essentially extra-legal system that (derives) its legitimation entirely from the supra-legal authority of the leader”[8] or in this case the executive. While the normative state would uphold and rationally abide by the laws and procedures in place; the prerogative state is characterised by arbitrary decision making that results from a highly personalised form of governance associated with party politics, where the established rules and procedures have little weight and personal connections are the new political currency.

If rules and procedures are ignored in favour of personal appointments, judicial review enshrined in our Constitution is the normative state’s remedy against usurpation by the prerogative state. As long as the formal institutions of the normative state are kept in place and the judiciary can continue to review the irrational and arbitrary actions of the executive, the future of our Constitutional democracy is protected.